IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NOs.9528/2018 & 11520/2018 (GM-FC) BETWEEN:
MRS. RITIKA SHARAN AGED ABOUT 37 YEARS WIFE OF MR SHUJOY GHOSH WAS RESIDING AT FLAT NO.107, INDUS SIGNATURE APARTMENT, APPAREDDYPALAY INDIRANAGARA 2ND STAGE, BANGALORE-560 038.
NOW RESIDING AT NCC IVORY HEIGHTS OUTER RING ROAD, B. NARAYANAPURA MAHADEVAPURA, BANGALORE-560 016.
(BY MR. JAYAKUMAR N.D. ADV.) AND:
MR. SUJOY GHOSH AGED ABOUT 37 YEARS SON OF J L GOSH WAS REISIDING AT FLAT NO.107, INDUS SIGNATURE APARTMENT, APPAREDDYPALAY INDIRANGARA 2ND STAGE, BANGALORE-560 038.
ALSO AT WIPRO LIMITED DODDAKANNELLI, SARJAPURA ROAD BANGALORE-560 038.
ALSO AT 70/3, PURBACHAL MAIN ROAD, JYOTSNALAYA FLAT NO.B1, KASABA KOKATTA WEST, BENGAL-700 078.
… PETITIONER … RESPONDENT (BY MR. SRISHAILA D, ADV.,) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE COMMON ORDER DATED 04.01.2018 AT ANNEXURE-A PASSED BY THE LEARNED PRINCIPAL JUDGE, FAMILY COURT, BANGALORE IN M.C.NO.4484 OF 2016, DISMISSED THE APPLICATION IN IA NO.3 FILED BY THE PETITIONER UNDER SECTION 26 OF THE HINDU MARRIAGE ACT READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, SEEKING TO DIRECT THE RESPONDENT TO HAND OVER THE PASSPORT OF THEIR SON MASTER SATTIK TO THE PETITIONER AND & ETC.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Jayakumar D., learned counsel for the petitioner.
Mr.Srishaila D., learned counsel for the respondent.
2. In these writ petitions under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 04.01.2018 passed by the Family Court by which application filed by the respondent under Section 26 of the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act’ for short) read with Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908, filed by the respondent has been allowed and the petitioner has been restrained from taking away of the child out of Bengaluru city until further orders / disposal of the case.
3. Facts giving rise to the filing of the petitions briefly stated are that admittedly the petitioner has filed a petition seeking dissolution of the marriage which is pending adjudication before the Principal Family Judge at Bengaluru. It is also not in dispute that the petitioner is presently employed in Singapore and the respondent – husband stays in a paying guest accommodation in Bengaluru. The petitioner filed an application for handing over the passport of the child to the petitioner. The respondent filed an application namely I.A.No.4 under Section 26 of the Act read with Order 39 Rule 1 and 2 of CPC in which a prayer was made restraining the petitioner from taking the child out of Bengaluru city. The Family Court, vide impugned order dated 04.01.2018, while allowing the application filed by the respondent, directed the petitioner not to take away the child out of Bengaluru city until further orders / disposal of the case and dismissed the application seeking passport of the child filed by the petitioner. In the aforesaid factual background, these petitions have been filed.
4. Learned counsel for the petitioner submitted that as per the directions of the Family Court, the petitioner will make an arrangement to ensure that the child Sattik is present on every third Saturday of the month in Bengaluru city so that the respondent can exercise his visitation rights. In this regard, an affidavit has been filed. It is further submitted that the petitioner be permitted to take the child to Singapore. It is also submitted that an unreasonable restriction has been imposed by the impugned order. On the other hand, learned counsel for the respondent has supported the order passed by the Family Court.
5. I have considered the submissions made by both the sides and have perused the record. It is pertinent to mention here that though the petitioner – wife has filed an application under Section 13 of the Act seeking dissolution of the marriage, yet she has not filed any application seeking custody of the child. Admittedly, in view of the order dated 01.03.2018, the child is staying with the grand parents i.e. the parents of the petitioner in Bengaluru. The aforesaid order has attained finality and has not been challenged by the petitioner. As stated supra, the petitioner has also not initiated any proceeding seeking custody of the child. It is also pertinent to note that the parents of the petitioner have not approached the Court by filing an application seeking permission to move the child to Singapore. Therefore, at the instance of the petitioner, challenge to the impugned order is not sustainable. The petitioner resides at Singapore and the child is not in her custody and the child stays with the grand parents in Bengaluru. Therefore, the order passed by the Family Court does not suffer from any jurisdictional infirmity nor any error apparent on the face of the record warranting interference of this Court under Article 227 of the Constitution. Even otherwise, it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the orders is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS’, (2010) 9 SCC 385, ‘SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423].
6. However, the petitioner is granted liberty to move an appropriate application seeking custody of the child and thereafter to approach the Family court seeking suitable orders.
With the aforesaid liberty, the petitions are disposed of.
Sd/- JUDGE RV